BASILI v STATE RAIL AUTHORITY OF NEW SOUTH WALES [1995] NSWCA 40

BASILI v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 8 September 1995, 8 September 1995 [1995] NSWCA 40

WORKERS COMPENSATION — APPEAL FROM REVIEW — AMBIT OF REVIEW — COCKATOO DOCKYARD v ATAMAIN (NSW Court of Appeal, 11 August 1995, unreported) APPLIED — WHETHER DECISION AGAINST WEIGHT OF EVIDENCE — NO — COURT BOUND BY COMMISSIONER'S FINDING ON CREDIBILITY

Clarke JA George Basili (whom I will call the worker) brought proceedings against his employer, State Transport Authority of New South Wales, seeking weekly compensation from 7 April 1990 for a finite period and continuing into the future. He claimed that he sustained an injury to his back, spine, right shoulder and right elbow region, which was complicated by an emotional stress reaction, nervousness, depression and anxiety.

These are conditions said to result from incidents at work on 4 July 1986, and 19 August 1987. He was terminated from work in 1990.

His claim was heard by Commissioner Turner who made an award in his favour upon the basis of partial incapacity for the period from 7 April 1990 to 7 November 1990 but declined to make an award for any later period.

The reason why the Commissioner did not make an award after 7 November 1990 was because he accepted evidence given by a number of doctors called by the employer that the worker had by that time recovered from any aggravations of pre-existing degenerative conditions and was not incapacitated for work.

The worker filed a notice of motion for review on 26 May 1992 which was 7 days after the determination of Commissioner Turner and in an affidavit supporting that notice of motion it was said only one ground of review was relied on. That was that the decision was against the weight of the evidence.